Notice for the OJ

 

Action brought on 7 October 2002 by NV Hoek Loos against the Commission of the European Communities

    (Case T-304/02)

    Language of the case: Dutch

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 7 October 2002 by NV Hoek Loos, established at Schiedam (Netherlands), represented by J.J. Feenstra and B.F. van Harninxma thoe Slooten, lawyers.

The applicant claims that the Court should:

(1)primarily, annul Article 3 of the contested decision, in so far as it concerns the fine imposed on the applicant;

(2)alternatively, in the exercise of its unfettered jurisdiction and applying justice in an appropriate manner, substantially reduce the fine imposed on the applicant;

(3)order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant is contesting Article 3 of the Commission's decision of 24 July 2002 in case COMP/E-3/36.700 ( Industrial and medical gases, in so far as it imposes a fine on the applicant for infringement of Article 81 EC. The applicant is contesting only the fine imposed on it, and is not challenging the facts established or the legal assessment thereof.

The applicant claims that the contested decision is contrary to Article 15(2) of Regulation No 17¹ and Article 253 EC. Fines to be imposed are to be determined by reference to the seriousness of the infringement and the duration thereof. According to the applicant, that rule has been applied by the Commission in an inequitable and unreasonable manner. The applicant maintains that undertakings which committed the same infringement over the same period should be required, under the terms of the decision, to pay a much smaller fine.

Furthermore, according to the applicant, the Commission, in choosing the addressees of the decision, the turnover attributable to each of those addressees and the order to be applied to the restriction of the fine to 10% of turnover and the leniency rule, adopted a decision which cannot be objectively justified and which does not justify the considerable differences in the amounts of the fines imposed.

The applicant also pleads infringement of the Community principles of equality and proportionality and of the prohibition precluding arbitrariness. According to the applicant, undertakings involved in a similar measure have been treated in an unequal way.

____________

¹ - EEC Council: Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87).